Execution of will. Beable v. Johnson v. Purdew v. The 9th section enacts, that no will shall be valid unless it be in writing, and signed at the foot or end thereof by use of an unmarried woman was unavailable against a future husband; for such a limitation does not in fact operate as any restriction on the power of alienation in the feme, either before or after the marriage. On the other hand, the validity of gifts to the separate use of unmarried women, as against subsequent husbands, has been expressly recognised and acted upon by the courts in the several cases of Beable v. Dodd, 1 T. R. 193; Anderson v. Anderson, 2 Myl. & Keen, 427, successively before Sir J. Leach and Lord Eldon; Simson v. Jones, 2 Russ. & Myl. 365, and Davies v. Thornycroft, 6 Sim. 420. It may also be inferred, from the case of Lee v. Prieux, 3 Bro. C. C. 381, that Lord Alvanley, and from the case of Adamson v. Armitage, 19 Ves. 416, that Sir W. Grant considered, that words of separate use annexed to gifts to unmarried women would be available against future husbands. The case of Anderson v. Anderson occurred some years previous to Massey v. Parker, but was not reported when the latter case was argued. In the case of Simson v. Jones, the feme was an infant at the time of marriage; but that circumstance does not seem important with reference to the effect of words of separate use. Sir J. Leach there said, "the leasehold estate being given to the separate use of the wife, the husband takes no interest in it." The latter case has been followed by Lord Langdale, Master of the Rolls, in Johnson v. Johnson, Rolls Court, 28th June, 1837. In Stiffe v. Everitt, 1 Myl. & Craig. 37, the point in question did not arise. In that case a testator directed the proceeds of a fund to be paid to the separate use of his daughter for life, exclusive of any husband she might marry, and with power for her to appoint the capital of the fund, but such appointment to take effect only from and after her decease, and without prejudice to her life interest: and the application to the court was for an immediate transfer of the capital on the wife's appointment; but with this the court refused to comply; for since the appointment which the wife was empowered to make was to take effect only from and after her decease, and as she might survive her husband, the interest to which she would then become entitled until her own death was reversionary only, and such as, consistently with the doctrine established in Purdew v. Jackson, 1 Russ. 1, and Honner v. Morton, 3 Russ. 65, could not be parted with. That portion of the judgment in Massey v. Parker which tended to shake the efficacy of gifts of property to unmarried women as against future husbands, where no settlement was made of the property by the feme, did not escape the attention of the learned author of the Treatise on Powers, see 1 Sug. Pow. 206, [6th ed.] After making some observations on the cases, the conclusion he comes to is, that there seems to be no reason to apprehend that gifts to the separate use of women, extending to future marriages, will be held void, they having the great authority of Lord Eldon in Anderson v. Anderson, and having in truth been indirectly established by the courts in numerous cases, without any doubt being suggested as to their validity. If the reader will bear in mind, and more particularly when perusing the judgment in Massey v. Parker, that a gift to the separate use of an unmarried the testator, or some other person in his presence, and by his direction; and that such signature shall be made or acknowledged by the testator in the presence of two or more witnesses present at the same time, who shall subscribe the will in the testator's presence; but that no form of attestation shall be necessary. And the 13th section dispenses with any publication of the will. the law. It may be almost needless to observe, that according to Prior state of the state of the law before the present statute comes into operation, a will of freehold property must be signed by the testator, or the signature of the testator thereto must be acknowledged by him in the presence of three witnesses, and that they must sign in the testator's presence, but that they need not be present at the same time; and that it is sufficient if, when attesting the will, they be in such a situation as will admit of their act of signing being seen by the testator. of witness not to invalidate The 14th section enacts, that a will shall not be invalid by Incompetency reason of the incompetency of a witness to prove the same. The statute of frauds required the witnesses to a will. will to be credible witnesses, so that a will of freehold property might possibly have become invalid by reason of the incompetency of a witness. witness to take no beneficial interest. the law. The 15th section enacts, that where some beneficial interest in real or personal estate is given to a witness to the will, such interest shall be void, but that the witness shall be admitted to prove the validity, or invalidity of the will. Before this enactment, though a legacy to a witness to Prior state of woman, independent of any future husband, operates as no restriction on alienation, but, in the absence of any settlement being made of the property, leaves her at liberty to dispose of the same as well after as before marriage, it will enable him to reconcile the cases on the subject, and to see that the position, that the gift to the separate use of an unmarried woman is valid against a future husband, does not impeach the doctrine established in the several cases cited in the judgment of Massey v. Parker, nor contravene that rule of law which denies validity to words restrictive of alienation in the absence of a limitation over, or, in the case of a married woman, in the absence of words restrictive of anticipation. A creditor to witness. a will of real estate was void, yet a legacy to a witness to a will of personal estate was not void, the 52 G. 2, c. 6, extending only to wills of real estates. (1) The 16th section enacts, that if by the will any real or be a competent personal estate is charged with debts, and a witness to the will be a creditor, he shall notwithstanding be admitted as a witness to prove the validity or invalidity of the will. Also an executor. Commencement and extension of the act. Re-execution &c., of will, or revival of codicil. Estate pur autre vie. The 17th section enacts, that a witness to a will shall be competent to prove the validity or invalidity thereof, though he be an executor. The 34th section provides, that the act shall not extend to a will made before the 1st of January, 1838; and that every will re-executed or re-published, or revived by any codicil, shall be deemed to have been made at the time at which it was so re-executed, re-published, or revived; and that the act shall not extend to any estate pur autre vie of any person dying before the 1st of January, 1838; and the 35th section provides, that the act shall not extend to Scotland. Law prior to 55 5. Of the Surrender to the use of a Will: herein of Devise. Before the statute of 55 G. 3, c. 192, repealed by the recent statute of wills, it was necessary that a copyholder, (1) Emanuel v. Constable, 3 Russ. 436. Foster v. Banbury, 3 Sim. 40. in order to render a disposition by will valid, should have previously surrendered the copyhold to the use of the will, unless the custom authorized such a disposition without a surrender. that statute. That statute enacted, that where any copyhold tenant Enactment of might by will dispose of or appoint his copyhold tenements, the same having been surrendered to such uses as should be declared by such will, every disposition or charge made by such will by any person, who should die after the passing of the act, of any such copyhold tenements, or any interest therein, should be as effectual, although no surrender should have been made to the use of the will, as the same would have been if the surrender had been made. the statute. The statute has been held to supply the want of a sur- Construction of render in cases where it was mere matter of form only, and not of substance; so that where the custom of a manor authorized a married woman to pass her copyhold Will of married lands by will, founded on a previous surrender by herself woman. and husband, on her separate examination, to the use of such will, the statute was held not to supply the want of such a surrender, the same being matter of substance, and requiring her separate examination. (1) It followed therefore, that unless the surrender to will was bare matter of form, it was necessary to be made, to render the disposition by will valid. And it is conceived that by reason of the 8th section of the recent statute, a surrender to will would still be required in a like case. Will of joint and after re Geo. 3, c. 192. tenant before The will of a joint tenant, pursuant to a surrender to the uses thereof, operated before the 55 G. 3, c. 192, as a severance of the joint tenancy; (2) and it is conceived that the same effect would be attributed to such a will made during the existence of that statute, and prior to the commencement of the recent statute respecting wills. Effect of such (1) Doe v. Bartle, 5 Bar. & Ald. 492. will under re cent act. State of the law when sur sary. The 3rd section of the latter statute, we have seen, (1) enables a person to dispose by will of all real and personal estate which, if not disposed of, would devolve upon the heir, executor, or administrator: it seems, therefore, to follow, that under the recent act, a joint tenancy in copyhold property will not be severed by the will of one of the joint tenants. If, when the law required a surrender to the uses render to use of of a will, a conditional surrender had been made, and will was neces- the surrenderee admitted thereon, the equity of redemption might have been disposed of without a surrender to will. (2) But if the surrenderor had first made a conditional surrender, and then his will, and afterwards the surrenderee had been admitted, a surrender was necessary to support such will, as the legal estate remained in the surrenderor until the admission of the surrenderee. (3) Cases in which will, when ne- Want of sur- When a surrender to will was required, the want of it was frequently supplied by Courts of Equity in favour of a wife, children, and creditors. Such a surrender, when matter of form only, having been rendered unnecessary, and copyhold property being made generally devisable under the recent statute without a surrender to will, it may be sufficient to refer to some only of the numerous cases in which a surrender would have been supplied prior to the 55 G. 3, c. 192. (4) There are also cases in which equity will supply the deed sometimes want of a surrender upon a deed, as well as a will, for a younger child, and upon the same principle as in the case of a will, or the execution of a power, that is, for and supplied by (1) Supra, p. 83. (2) King v. King, 3 P. Wms. 358. (3) Kenebel v. Scrafton, 8 Ves. 30. Doe v. Wroot, 5 East, 132, 1 Watk. Cop. 157, 333, [4th ed.] (4) Chapman v. Gibson, 3 Bro. C. C. 229. Fielding v. Winwood, 16 Ves. 90. Braddick v. Mattock, 6 Mad. 361. Pennington v. Pennington, 1 Ves. & Bea. 406. Sampson v. Sampson, 2 ibid. 337. 1 Watk. Cop. 178, [4th ed.] |